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Docket No. ND02-00970

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-ASAR, USN
Docket No. ND02-00970

Applicant’s Request

The application for discharge review, received 020625, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application the Applicant obtained American Legion as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Statement from the Applicant
Certificate of achievement
The Collegiate Assessment of Academic Proficiency Student Report
Phillips Community College grade report (semesters 1 and 2, 1999)
Pie Eating Champion, dated May 5, 2000
Certificate of appreciation, dated August 31, 1999
Certificate of completion, dated June 16, 2000
Certificate of achievement, dated October 18, 1999
Certificate of achievement, dated November 8, 1999
Certificate of achievement, dated September 27, 1999
Certificate for outstanding volunteer service, dated May 20, 1999
Certificate of completion, dated June 25, 1999
Certificate of outstanding attendance, dated August 31, 1999
Letter of reference, undated
Character reference, dated August 30, 2001

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	930830 - 940814	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940815		Date of Discharge:  960828

Length of Service (years, months, days):

	Active:    02  00  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  ASAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  1.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, BER, NUC, NATO

Days of Unauthorized Absence:  28

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950130:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 941210, violation of UCMJ Article 107: False official statement on 941210.
	Award: Forfeiture of $197.55 per month for 1 month, restriction and extra duty for 14 days.  Suspended for 3 months.  No indication of appeal in the record.

960501:	Applicant to unauthorized absence, 0725, 960501. and missed ships movement.

960530:	Applicant from unauthorized absence 0715, 960530 
(28 days/surrendered).

960607:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 960503 [960503] to 960530 (27 days).
	Award: Forfeiture of $490 per month for 1 month, restriction and extra duty for 00 days, reduction to E-X.  No indication of appeal in the record.

960610:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
960806:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on 960708 and 960721, violation of UCMJ, Article 92: Dereliction of duty from 960708 to 960710.
	Award: Forfeiture of $437 per month for 1 month, restriction and extra duty for 45 days, reduction to ASAR.  No indication of appeal in the record.

960813:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 960812, violation of UCMJ, Article 91: Disrespect towards a chief petty officer on 960810.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

960807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

960807:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960817:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960828 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1:  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9221/